The Judicial Politics of White Collar Crime
95 Pages Posted: 13 Apr 2013
Date Written: July 1, 1999
This article analyzes what I term the “white collar crime paradox:” In a substantial number of the U.S. Supreme Court’s leading white collar criminal cases, ranging from securities fraud to political corruption cases, the “liberal” justices have voted to affirm convictions, and the “conservative” justices to reverse them. Even more frequently, these cases have produced strange alliances among the liberals and conservatives, who rarely split into such groupings in non-white collar criminal cases. And it is not merely votes and alliances that change in white collar cases; judicial philosophies, attitudes, and rhetoric transmogrify into a veritable twilight zone of Supreme Court criminal law jurisprudence.
The common or “traditional” view of the Court's white collar jurisprudence is it is essentially class-based and result-driven. This cynical perspective rests on the assumption that the justices alter their views on criminal justice matters according to subjective reactions to the defendant’s social status. This perspective, if accurate, is disturbing. It bespeaks both deep-seated hypocrisy and intellectual shallowness on the Court.
It is my view that the real explanation for the strange voting patterns is, not surprisingly, far more complex than the common wisdom would allow. First, when analyzing the types of issues white collar cases raise, we see that concerns over statutory construction and federalism may skew the justices’ usual criminal case ideologies. Second, and more fundamentally, white collar criminal statutes often raise unique concerns over the nature of criminalization and punishment. It may be that the nature of white collar criminalization, and its current flaws, have more than any other factors contributed to the white collar crime paradox.
Keywords: Criminal Law, White Collar Crime, Supreme Court, Securities Fraud, Criminal Law Theory
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